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Scottish Court of Session Decisions >>
Hay v The Laird of Pourie and the Lady Ballegerno. [1680] Mor 3773 (29 July 1680)
URL: http://www.bailii.org/scot/cases/ScotCS/1680/Mor0903773-123.html Cite as:
[1680] Mor 3773
The execution must specify the Names and Designations of the Parties, Dwelling-houses, &c.
Subject_3 SECT. VII.
Six Knocks.
Hay v. The Laird of Pourie and the Lady Ballegerno
Date: 29 July 1680 Case No. No 123.
An inhibition found null, because the executions were at the dwelling-house, and a copy affixed, but did not bear six knocks at the door.
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John Hay of Murie, as donatar to the recognition of the lands of Murie, pursues declarator upon alienations of the major part, made by –––– Lindsays, heritors for the time.—It was alleged for the Laird of Pourie, and the Lady Ballegerno, who now have right, That there was inhibition used before these deeds of alienation, whereupon there is reduction of the Lindsays' rights ex capite inhibitionis, so that after they were inhibited, as no disposition granted by them, or debt contracted by them, could hinder inhibition to take effect, so neither can these alienations infer recognition, in prejudice of the inhibition; but if thereby the Lindsays' right could be reduced, the donatar's recognition would fall in consequence, being founded upon their alienations; and if after inhibition, those who acquire unwarrantable and invalid rights, might, by their alienation of the greater part, without consent of the superior, or other feudal delinquence, infer recognition, and thereby evacuate the effect of an inhibition anterior to the delinquent's right, it were a compendious way for insolvent debtors, when inhibited, to disappoint their creditors by such delinquences; and therefore the recognition must be but prejudice to the inhibition, and with the burden of the sum upon which it proceeded.—It was answered, That inhibitions do not denude, or give any real right, but only hinder the person inhibited, to grant any voluntary right, which becomes null, as spreto mandato of the inhibition, so that it cannot hinder the casuality of the superiority; for notwithstanding, the vassal's liferent would fall, or his ward, and therefore so must the recognition upon his deeds; 2do, This inhibition is ipso jure null, the executions bearing to be at a dwelling-house, and not bearing six knocks at the door thereof, as is prescribed in the act of Parliament, albeit it bear several knocks.
The Lords found the inhibition null, and so had no occasion to determine the effect of the inhibition against the recognition.
